Where the ground of the motion is misconduct of the jury or of the officer in charge of them, or because of any communication made to the jury or that they received other testimony, the court shall hear evidence thereof from the jury or others in open court, and may grant a new trial if such misconduct proved, or the testimony received, or the communication made, be material, and if it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party.

Source: Art. 2234.

Change: Imposing burden on complaining party to show probability of injury.

(No. 35) Question: To what extent has Rule 327 effected a change in the procedure concerning jury misconduct?

Answer: A long line of decisions had heretofore established the rule in Texas that when the fact of material jury mis­conduct was once established by the evi­dence presented in support of the motion for a new trial, then it would be presumed that this misconduct was prejudicial and the case would be reversed unless the evi­dence showed beyond a reasonable doubt that the misconduct was harmless and did not affect the verdict ,or findings of the jury.

Rule 327 does away with this presump­tion of prejudice. Under the Rule a new trial should not be granted because of jury misconduct unless "it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party."

The burden of proving no injury is taken off the appellee; and the burden of affirmatively establishing probable injury is placed upon the appellant as to jury misconduct just as it is in regard to other errors upon which the appellant seeks a reversal of the case.